Citation Nr: 0325242
Decision Date: 09/26/03 Archive Date: 10/02/03
DOCKET NO. 02-18 129 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUE
Whether the appellant is eligible for nonservice-connected
pension benefits.
WITNESSES AT HEARING ON APPEAL
The appellant and D.M.
ATTORNEY FOR THE BOARD
David S. Nelson, Counsel
INTRODUCTION
The appellant served as a member of the New Mexico Army
National Guard.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a September 2002 determination by
the Albuquerque, New Mexico, Regional Office (RO) of the
Department of Veterans Affairs (VA). In April 2003 the
appellant appeared and testified at a personal hearing before
the undersigned Veterans Law Judge at the RO. A transcript
of that hearing is of record.
FINDING OF FACT
The appellant did not serve in the active military, naval, or
air service.
CONCLUSION OF LAW
The appellant has not met the eligibility criteria for
nonservice-connected pension benefits. 38 U.S.C.A. §§
101(24), 1521 (West 2002); 38 C.F.R. §§ 3.2, 3.3, 3.6 (2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) provides
that VA shall assist a claimant in obtaining evidence
necessary to substantiate the claimant's claim for a benefit
under a law administered by VA. See 38 U.S.C.A. §§ 5103,
5103A; 38 C.F.R. §§ 3.102, 3.159. In this case, the RO took
action that is consistent with the notification and
assistance provisions of the VCAA. Moreover, in a statement
of the case issued in October 2002, the RO notified the
appellant of the new law and adjudicated his claim pursuant
thereto. In any event, any additional assistance could not
possibly aid in further substantiating the appellant's claim,
because, as explained below, the appellant's entitlement to
the benefit sought is precluded by law. See Livesay v.
Principi, 15 Vet. App. 165 (2001) (holding that the VCAA does
not require a remand of all claims pending on its effective
date).
The appellant seeks entitlement to nonservice-connected
pension benefits on the basis that he is unable to work due
to nonservice-connected disabilities. 38 U.S.C.A. § 1521(a).
Under the provisions of 38 U.S.C.A. § 1521(j), pension is
payable to an appellant who served in the active military,
naval, or air service: (1) for 90 days or more during a
period of war; (2) during a period of war and was discharged
or released from such service for a service-connected
disability; (3) for a period of 90 consecutive days or more
and such period began or ended during a period of war; or (4)
for an aggregate of 90 days or more in two or more separate
periods of service during more than one period of war.
Under VA regulations, "active military service" includes
active duty, any period of active duty for training during
which the individual concerned was disabled or died from a
disease or injury incurred or aggravated in the line of duty,
and any period of inactive duty training during which the
individual concerned was disabled or died from an injury
incurred or aggravated in the line of duty. 38 U.S.C.A. §
101(24); 38 C.F.R. § 3.6(a). The term "active duty" means,
in part, full-time duty in the Armed Forces, other than
active duty for training. 38 U.S.C.A. § 101(21)(A); 38
C.F.R. § 3.6(b).
The appellant has essentially asserted (at his April 2003
Board hearing) that he has the requisite active duty service
as evinced by his DD Form 214 (which reflects more than 4
months of active service). The Board here observes that the
appellant does not contend that he became disabled from a
disease or injury incurred during a period of active duty for
training or inactive duty training.
It is clear that the appellant's DD 214 does note a total of
4 months and 9 days of total active service. However, that
same document clearly reflects that the appellant's 4 months
and 9 days of service (from August 15, 1965 to December 23,
1965) were the result of the appellant being ordered to
active duty for training. As noted, a period of active duty
for training service is not "active military service" as
defined by VA regulations. 38 C.F.R. § 3.6(b).
A NGB Form 22 of record indicates that the appellant served
in the Army National Guard of New Mexico from August 1965 to
February 1971 with various periods of active duty for
training totaling six months (August 15, 1965 to December 23,
1965; July 17, 1965 to July 31, 1965; June 11, 1967 to June
25, 1967; August 18, 1968 to September 1, 1968; and June 22,
1969 to July 6, 1969). There is no indication that any of
the appellant's service with the New Mexico National Guard
constituted "active military service" as defined by VA
regulations. Further, while the appellant has asserted that
he was called to active duty to quell riots in Albuquerque,
there is no indication that the appellant was called into
Federal service as a member of the National Guard. 38 C.F.R.
§ 3.7(o). As noted, the appellant's NGB Form 22 lists only
periods of ACDUTRA (active duty for training).
Based on the foregoing, the Board finds that the appellant's
service does not qualify as "active duty" under 38 U.S.C.A.§
101(21)(A) and 38 C.F.R. § 3.6(b). Given this fact, the
Board finds that the appellant did not serve in the active
military, naval, or air service. Based on this finding, the
Board concludes that the appellant has not met the
eligibility criteria for nonservice-connected pension
benefits. As the law is dispositive in this case, the claim
must be denied based on a lack of entitlement under the law.
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
ORDER
Eligibility for nonservice-connected pension benefits is
denied.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
JUN
2003
(RS)
4597
Page
1
CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
FORM
JUN
2003
(RS)
4597
Page
2